Citation Nr: 0105168
Decision Date: 02/20/01 Archive Date: 02/26/01
DOCKET NO. 96-49 870 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for post traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Taylor, Associate Counsel
INTRODUCTION
The veteran had active service from March 1968 to February
1970.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an October 1993 rating decision from the Los
Angeles, California, Department of Veterans Affairs (VA)
Regional Office (RO), which denied entitlement to service
connection for PTSD.
This case was previously before the Board on two occasions.
In the Board's most recent remand in November 1999, the RO
was instructed to contact the United States Armed Services
Center for Research of Unit Records (USASCRUR) in order to
attempt to confirm the veteran's alleged inservice stressor.
That development having been completed to the extent
possible, the Board will proceed with adjudication of the
claim.
FINDINGS OF FACT
1. The veteran did not engage in combat with the enemy, and
his alleged stressors do not involve combat.
2. There is no credible supporting evidence of the
incurrence of any in-service stressor to support the
diagnosis of PTSD related to military service.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by active military
service. 38 U.S.C.A. § 1110 (West 1991); Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat.
2096, 2098-99 (2000) (to be codified as amended at 38 U.S.C.
§ 5107); 38 C.F.R. §§ 3.303, 3.304(f) (1998 & 2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran had active service from March 1968 to February
1970. A review of the veteran's service medical records and
personnel records reveals that he was stationed in Germany
from July 1968 to February 1970. His service personnel
records show that his unit of assignment during this period
was the Headquarters and Headquarters Company of the 1st
Battalion, 87th Infantry (Mechanized). However, his DD Form
214 reflects that his last assignment was with the
Headquarters and Headquarters Company of the 1st Battalion,
8th Infantry, United States Army, Europe. The records do not
indicate that the veteran is in receipt of decorations,
awards or other indicia of combat. His DD Form 214 indicates
that he is in receipt of the National Defense Service Medal
and the Marksman Medal.
The veteran's service medical records are negative for
complaints, treatment or diagnoses of a psychiatric
disability. Treatment records from Baumholder, Germany, show
that he complained of headaches and nervousness. The
impressions were tension headaches and conversion reaction.
The veteran's October 1969 separation examination shows a
normal psychiatric evaluation. On the accompanying medical
history, he denied frequent trouble sleeping, frequent or
terrifying nightmares, depression or excessive worry, and
nervous trouble of any sort.
VA outpatient treatment records dated from February 1987 to
April 1989 show that the veteran reported having seen a
psychiatrist on one occasion during service because he did
"not feel good." Treatment records dated in March 1988
show that the veteran complained that war pictures irritated
him. The pertinent diagnoses were nervousness in a
recovering alcoholic and explosive personality disorder.
In a statement in support of his claim, received in October
1993, the veteran alleged that in 1969 he was on alert in an
armored personnel carrier (114 reconnaissance truck) when he
witnessed a 577 armored personnel carrier drive off of a
bridge and land in the water below. He reported that his
Lieutenant had prevented him from attempting a rescue of the
11 people trapped inside the sinking carrier, which resulted
in 11 drownings. He stated that he had weekly nightmares of
men drowning, to include one in which a man inside the
carrier was waving his arm for help, as well as nightmares of
he himself inside the tank with water rushing in. The
veteran further stated that he had nightmares of blowing up
bunkers, which he reported he had done in service in
Czechoslovakia in 1970, as a spotter in the buffer zone,
zeroing in on combat areas.
VA outpatient treatment records dated from January 1993 to
February 1994 show that the veteran was treated and diagnosed
with PTSD secondary to trauma experienced in Germany. In a
treatment record dated in September 1993, the veteran
described his nightmare as one in which there was an armored
personnel carrier with a hand sticking out of it motioning
for help. The veteran indicated that the nightmare changed
and he himself was inside the tank with the other person,
trying to keep water out by plugging up the hole with his
hand. He further reported having been in Czechoslovakia for
3-4 months stationed in a buffer zone. The assessment was
"PTSD - war nightmares." A December 1993 record of
treatment shows that the veteran was referred to the mental
health clinic as a result of nightmares of involving an
accident in Czechoslovakia. The referral states that the
veteran heard the screams of drowning people that he had not
been allowed to save.
In his notice of disagreement, received in June 1994, the
veteran reported that while stationed in Germany during
service, he witnessed a 577 armored personnel carrier drive
off of a bridge and into the water below. He stated that his
2nd Lieutenant would not allow him to attempt to rescue the
11 individuals that were in the carrier, one of whom was
reaching out of the truck for help. He also described a
dream in which he himself was the man in the carrier, and was
trying to plug up the water hole. The veteran indicated that
he had dreams of the incident on a nightly basis.
The veteran was accorded a VA PTSD examination in January
1995. He reported that he had not served in combat but had
experienced an event that occurred while stationed in
Baumholder, Germany, on maneuvers in the field. He reported
that in the summer of 1970 his unit was put on alert while
they were in convoy on the way to the field. The veteran
stated that "we pulled behind a 577 armored personnel
carrier which was a troop carrier that transported
approximately eleven people." He reported that the
hydraulics locked up and the armored carrier went over the
bridge and into the water. He stated that he immediately
began to undertake a rescue. He indicated that as he was
preparing to jump in to the water, an officer arrived on the
scene and told him not to go into the water, stating that the
individuals inside the carrier were already dead and that the
Company had to press onward. The veteran reported that on
the night of the incident, he experienced his first
nightmare, in which he saw the back of the carrier with two
openings, through one of which he could see an arm. He
stated that he had had recurrent, distressing dreams.
On examination, the VA examiner described the veteran as
pleasant and cooperative. The report notes that the veteran
had difficulty discussing the incident and broke down and
cried. His memory was fair for recent and remote events. He
handled abstractions easily and serial subtractions without
any difficulty. There was no evidence of overt psychotic
manifestations. The diagnoses were: Axis I-PTSD, chronic,
severe, and alcohol dependence in remission times six years;
and Axis IV-severity of psychosocial stressors: 4. A global
assessment of functioning (GAF) of 50 was assigned. In an
addendum, it was noted that the veteran was seen again in
June 1995 with no change in status.
In May 1996 the RO requested verification of the veteran's
claimed inservice stressor from the NPRC. The RO provided
the veteran's description of the alleged event, as well as
the veteran's assignment to Headquarters and Headquarters
Company 1st Battalion, 8th Infantry USAREUR, Baumholder,
Germany. In a June 26, 1996 response to a request for
information pertaining to U.S. troops blowing up bunkers in
Czechoslovakia, the NPRC, reported that a search for January
and February 1970 from Headquarters and Headquarters Company
1st Brigade 8th Infantry Division had produced no entries
regarding any drownings.
The NPRC, in a response received June 27, 1996, reported that
Headquarters and Headquarters 2nd Brigade 8th Infantry
Division was at Baumholder, Germany, not the 1st Brigade; 1st
Brigade, which was reportedly at Gonsenheim, Germany.
Additionally, NPRC stated that a search for Headquarters and
Headquareters Company 1st Brigade, 8th Infantry Division from
October 1, 1969 to December 31, 1969 had produced no entries
pertaining to any drownings. In another response received
June 27, 1996, the NPRC reported that a search of July,
August, and September morning reports for Headquarters and
Headquarters 1st Brigade, 8th Infantry Division produced no
entries pertaining to any drownings.
A third NPRC response dated June 27, 1996 states that a
search of records from the Headquarters and Headquarters
Company 1st Brigade, 8th Infantry Division for January 1, 1969
through March 31, 1969 had produced no entries and that there
was no mention of any drownings.
VA outpatient treatment records dated from February 1996 to
March 1999 show that the veteran was seen intermittently for
PTSD.
At a personal hearing before a hearing officer at the RO in
March 1997, the veteran testified that during service in
Germany, he drove an armored personnel carrier. He reported
that during a combined field exercise/combat training,
probably in the spring or summer of 1969, he witnessed
another armored carrier from an artillery division in a
different unit, drive off of a bridge and into the water
below. Transcript at 4 & 11-12.
The veteran stated that he began to undertake a rescue of the
sinking carrier that still had people in it, by hooking
cables together, but was ordered not to go into the water by
an Officer in the artillery division before he could attempt
a rescue. Transcript at 6. He testified that he later
learned that approximately 11 people in the armored carrier
had drowned. He indicated that the military police did not
get involved and stated that he was not interviewed in
association with an investigation of the incident.
Transcript at 8. The veteran reported that he sought
treatment on two occasions from a psychiatrist in Germany
shortly after the incident and began drinking alcohol in
excess. Transcript at 8.
By letter dated in April 1998, USASCRUR reported that the
records showed that the 1st Battalion, 8th Infantry Division
was stationed in Vietnam from 1966 to April 1970.
In a September 1998 statement in support of the claim, the
veteran's representative asserted that the veteran's PTSD was
the result of the alleged traumatic incident that occurred in
Baumholder, Germany.
Pursuant to the Board's January 1999 remand, the RO, by
letter dated in February 1999, requested that the veteran
provide more specific information regarding the claimed
inservice stressors.
VA outpatient treatment records dated in March 1999 show that
the veteran reported having a nightmare in which he watched
as 11 people drown. He stated that his superior would not
let him try to rescue the people. He stated that he remained
upset because he felt that he could have saved the people and
dreamed nightly to monthly of the 11 people drowned.
By letter dated in March 2000, the RO again requested that
the veteran provide more specific information regarding the
claimed inservice stressor.
In an August 1999 addendum to the previous September 1998
statement in support of the claim, the veteran's
representative reiterated the veteran's contention that the
inservice stressor was the incident that took place in
Baumholder, Germany, as previously described. No further
details were provided.
By letter dated in February 2000, USASCRUR reported that
there was insufficient information regarding the claimed
inservice stressor to verify its occurrence.
Criteria
Generally, for service connection to be granted, it is
required that the evidence establish that a particular injury
or disease resulting in chronic disability was incurred in
service, or, if pre-existing service, was aggravated therein.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. When a
disability is not initially manifested during service or
within an applicable presumptive period, "direct" service
connection may nevertheless be established by evidence
demonstrating the disability was in fact incurred or
aggravated during the veteran's service. See 38 U.S.C.A. §
1113(b) (West 1991); 38 C.F.R. § 3.303(d).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with the fourth
edition of the Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV), a link, established by medical evidence,
between current symptoms and an in-service stressor, and
credible supporting evidence that the claimed in-service
stressor occurred. 38 C.F.R. § 3.304(f), as amended, see
64 Fed. Reg. 117 (1999).
Newly enacted legislation now provides as follows:
(a) Except as otherwise provided by law,
a claimant has the responsibility to
present and support a claim for benefits
under laws administered by the Secretary.
(b) The Secretary shall consider all
information and lay and medical evidence
of record in a case before the Secretary
with respect to benefits under laws
administered by the Secretary. When
there is an approximate balance of
positive and negative evidence regarding
any issue material to the determination
of a matter, the Secretary shall give the
benefit of the doubt to the claimant.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 4, 114 Stat. 2096, 2098-99 (2000) (to be codified at
38 U.S.C. § 5107).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims (known as
the United States Court of Veterans Appeals prior to March 1,
1999) (hereinafter, "the Court") stated that "a veteran
need only demonstrate that there is an 'approximate balance
of positive and negative evidence' in order to prevail." To
deny a claim on its merits, the evidence must preponderate
against the claim. Alemany v. Brown, 9 Vet. App. 518, 519
(1996), citing Gilbert, 1 Vet. App. at 54.
Initial Matters
The law provides that the Secretary shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate the claimant's claim for a benefit under a
law administered by the Secretary, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law further provides that the
Secretary may defer providing assistance pending the
submission by the claimant of essential information missing
from the application. H.R. 4864, the Veterans Claims
Assistance Act of 2000, (to be codified at
38 U.S.C.A. § 5103A(a)(1)-(3)).
Governing law now specifically provides that the duty to
assist includes obtaining relevant records (including private
records) that the claimant adequately identifies to the
Secretary and authorizes the Secretary to obtain, and that
whenever the Secretary, after making such reasonable efforts,
is unable to obtain all of the relevant records sought, the
Secretary shall notify the claimant that the Secretary is
unable to obtain records with respect to the claim. The
notification must identify the records the Secretary is
unable to obtain; explain the efforts that the Secretary made
to obtain those records; and, describe any further action to
be taken by the Secretary with respect to the claim.
Veterans Claims Assistance Act of 2000, (to be codified at
38 U.S.C.A. § 5103A(b)(1), (2)). The law further states that
whenever the Secretary attempts to obtain records from a
Federal department or agency under this subsection or
subsection (c), the efforts to obtain those records shall
continue until the records are obtained unless it is
reasonably certain that such records do not exist or that
further efforts to obtain those records would be futile.
Veterans Claims Assistance Act of 2000, (to be codified at
38 U.S.C.A. § 5103A(b)(3)).
Current law more specifically provides that the assistance
provided by the Secretary shall include obtaining the
following records if relevant to the claim:
(1) The claimant's service medical records and, if the
claimant has furnished the Secretary information
sufficient to locate such records, other relevant
records pertaining to active military, naval, or air
service that are held or maintained by a governmental
entity.
(2) Records of relevant medical treatment or examination
of the claimant at Department health-care facilities or
at the expense of the Department, if the claimant
furnishes information sufficient to locate those
records.
(3) Any other relevant records held by any Federal
department or agency that the claimant adequately
identifies and authorizes the Secretary to obtain.
Veterans Claims Assistance Act of 2000, (to be codified at
38 U.S.C.A. § 5103A(c)).
The law further provides that the assistance provided by the
Secretary shall include providing a medical examination or
obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim. An
examination is deemed "necessary" if the evidence of record
(lay or medical) includes competent evidence that the
claimant has a current disability, or persistent or recurrent
symptoms of disability; and indicates that the disability or
symptoms may be associated with the claimant's active
military, naval, or air service; but does not contain
sufficient medical evidence for the Secretary to make a
decision on the claim. Veterans Claims Assistance Act of
2000 (to be codified at 38 U.S.C.A. § 5103A(d)).
In reaching its decision, the Board has considered that
Congress recently passed the Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000),
modifying the adjudication of all pending claims. In this
case, the Board finds that the veteran is not prejudiced by
its consideration of his claims pursuant to this new
legislation insofar as VA has already met all obligations to
the veteran under this new legislation. VA personnel have
attempted to obtain unit documentation such as morning
reports and other records that could possibly substantiate
the veteran's claim related to the drownings of 11 people in
an armored personnel carrier. The veteran has been afforded
a VA examination. He has been offered the opportunity to
submit evidence and argument on the merits of the issue on
appeal and has done so. Further, VA has clearly advised the
veteran of the types of evidence potentially probative of his
claim. The veteran has been advised of the unavailability of
information and/or the reasons why collaboration of his
claimed in-service stressor has not been possible. In view
of the foregoing, the Board finds that the veteran will not
be prejudiced by its actions and that another remand for
adjudication by the RO would only serve to further delay
resolution of the veteran's claim.
Analysis
In this case, the record clearly establishes a current
diagnosis of PTSD and a medical nexus opinion linking such to
the veteran's reported witnessing people drowning in an
armored personnel carrier. 38 C.F.R. § 3.304(f). Therefore,
the claim for service connection for PTSD in this appeal must
be decided based upon the question of whether the in-service
stressor(s) reported by the veteran and relied upon by the
competent medical professional diagnosing PTSD occurred, as
substantiated by competent supporting evidence. That
question involves both consideration of the facts as
presented and the credibility of the evidence contained in
the instant record. The Court has held that, "[i]t is the
duty of the BVA as the fact finder to determine credibility
of the testimony and other lay evidence." Culver v.
Derwinski, 3 Vet. App. 292, 297 (1992).
The Court in Zarycki v. Brown, 6 Vet. App. 91 (1993), set
forth the foundation for the framework now established by the
case law for establishing the presence of a recognizable
stressor, which is the essential prerequisite to support the
diagnosis of PTSD. The Court noted that the evidence
necessary to establish the existence of a recognizable
stressor during service will vary depending on whether or not
the veteran was "engaged in combat with the enemy" under
38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304
(2000). In other words, a veteran's bare assertions that he
"engaged in combat with the enemy" are not sufficient, by
themselves, to establish this fact. If the determination of
combat status is affirmative, then (and only then), a second
step requires that the veteran's lay testimony regarding
claimed stressors must be accepted as conclusive as to their
actual occurrence and no further development or corroborative
evidence will be required, provided that the veteran's
testimony is found to be "satisfactory," e.g., credible,
and "consistent with the circumstances, conditions, or
hardships of such service." Zarycki at 98 (emphasis added).
In the instant case, the Board concludes that the veteran did
not engage in combat with the enemy and is thus not entitled
to the presumptions under 38 U.S.C.A. § 1154(b); 38 C.F.R.
§ 3.304(f). Although the veteran has alluded to having been
near a combat zone, he essentially does not argue that he
engaged in combat with the enemy and service documents
clearly show he had no combat service or overseas service in
a war area. Rather, the veteran's claimed stressor does not
involve combat.
The Court, in Moreau v. Brown, 9 Vet. App. 389 (1996), citing
the manual M21-1 Part VA, 7.46.c (Oct. 11, 1995) held that
"credible supporting evidence" of a noncombat stressor
"may be obtained from" service records or "other sources."
The Court further held that while the M21-1 provisions did
not expressly state whether the veteran's testimony standing
alone could constitute credible evidence of the actual
occurrence of a noncombat stressor, the Court's holding in
Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996), established,
as a matter of law, that "if the claimed stressor is not
combat-related, [the] appellant's lay testimony regarding the
in-service stressors is insufficient to establish the
occurrence of the stressor." Further, the Court held in
Moreau, the fact that a medical opinion was provided relating
PTSD to events the veteran described in service could not
constitute "credible supporting evidence" of the existence
of the claimed noncombat stressor. Id.
In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court noted
that the VA had adopted a final rule in October 1996,
effective November 7, 1996, revising 38 C.F.R. §§ 4.125 and
4.126. The effect of these revisions was to change the
diagnostic criteria for mental disorders from the Diagnostic
and Statistical Manual for Mental Disorders (DSM), third
edition and the third edition, revised, to the fourth edition
(DSM-IV). The Court found that DSM-IV altered the criteria
for assessing the adequacy of the stressor from an objective
to a subjective basis. The Court further found that where
there was "undisputed, unequivocal" diagnoses of PTSD of
record, and the Board did not make a finding that the reports
were incomplete, the adequacy of the stressor had to be
presumed as a matter of law. (The concurring opinion goes
further and states that the case also holds that where there
is an "unequivocal" diagnosis of PTSD, the adequacy of the
symptoms to support the diagnosis, as well as the sufficiency
of the stressor, are presumed. Id. at 153). In West v.
Brown, 7 Vet. App. 70 (1994), the Court held that the
sufficiency of the stressor is a medical determination, and
therefore adjudicators may not render a determination on this
point in the absence of independent medical evidence.
The Board finds that, upon review of the relevant legislation
and case law, it is clear that the question of the existence
and character of an event claimed as a recognizable stressor
is a matter solely within the province of adjudicatory
personnel. That is the issue addressed herein. The Board,
insofar as it finds below that there is no recognizable
stressor, does not reach questions of whether the events
claimed by the veteran were sufficient to constitute a
stressor for purposes of causing PTSD, or whether the
remaining elements required to support the diagnosis of PTSD
have been met, both matters that require competent medical
opinions and expertise.
The veteran has claimed two in-service stressors. The first
is witnessing 11 people drown after the armored personnel
carrier in which they were passengers, drove off of the side
of the bridge and into the water below during his active
service in Baumholder, Germany. The second is blowing up
bunkers in Czechoslovakia in 1970 as a spotter in a buffer
zone and zeroing in on combat areas. The Board notes that
while USASCRUR in an April 1998 communication reported that
the veteran's unit was in Vietnam from 1966 to 1970, this
appears to have been based on incomplete or inaccurate
information provided.
In any case, in response to subsequent requests containing
the correct information, USASCRUR has advised VA that in
order to be researched, more specifics surrounding the
casualties and incidents was necessary, such as the name or
unit designation of the individual killed or wounded and date
the incident occurred. In order to be researched, incidents
must have been reported and documented at the time of
occurrence, and, the veteran must provide adequate
information as to the who, what, where and when of each
stressor. Cohen v. Brown, supra at 5-6, citing the United
States Armed Services Center for research of United Records.
The veteran in this case did not identify specific facts such
as the unit designation to the company level, a specific date
type, or names of any people that were present when the
alleged incident took place. USASCRUR and the NPRC have
certified that the records reflect no drownings in 1969 or
early 1970, and that they could not verify information
pertaining to U.S. troops blowing up bunkers in
Czechoslovakia.
The veteran has not submitted, and no official agency has
provided, evidence of an armored personnel carrier driving
off of a bridge drowning 11 people or of the veteran's
involvement in blowing up bunkers in Czechoslovakia. There
is no other credible supporting evidence of these stressors.
Here the Board again emphasizes efforts made by RO personnel
to obtain records that may corroborate his report of an
incident. The RO has been unsuccessful in obtaining
information relevant to the claimed incident. Nor has the
veteran submitted lay statements or other information that
supports his story. The sole supporting evidence that the
alleged stressful events occurred are the veteran's own
statements and notation of such experiences as recorded by
medical professionals and social workers in connection with
treatment and evaluation. A noncombat veteran's lay
testimony regarding in-service stressors is insufficient to
establish the occurrence of the stressor and must be
corroborated by credible supporting evidence that the claimed
stressors actually occurred. Cohen v. Brown, supra at 20
(citing Doran v. Brown, 6 Vet. App. 283, 289 (1994)). The
Board also notes that credible supporting evidence of the
actual occurrence of an in-service stressor cannot consist
solely of after-the-fact medical nexus evidence. See Moreau
v. Brown, 9 Vet. App. 389, 396.
In conclusion, the Board has determined that there is no
credible supporting evidence that the claimed in-service
stressors actually occurred. See West v. Brown, 7 Vet.
App. 70, 79-80 (1994). In light of the above, there is not
an approximate balance of positive and negative evidence to
which the benefit-of-the-doubt standard applies; the
preponderance of the evidence is against the claim of service
connection for PTSD and the veteran's appeal is denied.
38 C.F.R. § 3.304(f).
ORDER
Service connection for PTSD is denied.
Mark D. Hindin
Member, Board of Veterans' Appeals